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Daf Parashat Hashavua

(Study Sheet on the Weekly Torah Portion)

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Parashat Shoftim

The Role of the King

Dr. Ittamar Warhaftig

The Faculty of Law

Our parashah deals with the institutions of government in ancient Israel. Two institutions head the list - the judiciary and the monarchy.

At the head of the judiciary stands the high court which is also called the Great Sanhedrin. Its role and authority are discussed in detail in the Talmud and in halachic literature (see: Maimonides, Mishne Torah, Hilchot Sanhedrin and the beginning of Hilchot Mamrim). This is not true of the role of the king. Even though the Torah devotes six verses (Deut. 17:14-20) to the king, and the laws that govern his role are the subject of the second chapter in Tractate Sanhedrin and of chapters one and two in Maimonides' Laws of Kings, our knowledge of this issue is still very limited.

What is the role of the king ? The Torah commands: "Appoint a king over you..."(Deut.17:15) [Note: the JPS version, "You shall be free to set a king over yourself," is not in accord with the halachic understanding of this verse] and then goes on to tell us who is ineligible for the job - "You must not set a foreigner over you"(ibid.). Further on we read of limitations which are placed on the rights of the king: "He shall not keep many horses... he shall not have many wives... nor shall he amass silver and gold to excess"(ibid.,16-17). He is also enjoined to write a Torah scroll for himself so that it may be with him always, "So that he may learn to revere the Lord ... Thus he will not act haughtily towards his fellows"(ibid., 19-20). And yet we have learned nothing of his powers or of his role.

The Book of Samuel helps to clarify things, when, for the first time, the question of appointing a king becomes practical. The prophet Samuel opposes such an appointment (1 Samuel, chap. 8) and warns the people who express a desire for a monarchical system of the hardships a king might impose upon them once he is appointed. Samuel's negative attitude towards the monarchy demands an explanation which will be provided further on.

In any case, the Talmud in Sanhedrin 20b presents a difference of opinion, both of Tannaim and Amoraim (sages of the Mishnah and of the Talmud) as to the powers of the king enumerated in Samuel. Are these the rights of kings or are they actually prohibited acts which the prophet Samuel cited only as a threat against the people ?

Reading the Book of Samuel, we now know more about the king's powers over the people, but what is his role, and why does one need a king at all? It is strange that the Torah says nothing on the subject and Samuel merely hints at it vaguely. Obviously, opinion on the subject was a matter of dispute.

In 1 Samuel 8:6 the elders of Israel come before the prophet to say: "Appoint a king over us, to judge us, like all the other nations". At the conclusion of the chapter, after Samuel's threats and warnings, the people remain adamant and say again: "...And we will be like all the other nations and our king will judge us and go out before us and fight our wars". True, the Torah already mentions that at some time in the future the People of Israel will ask for a king, as is the custom among nations (Deut.17:14), but here for the first time, in the Book of Samuel, two possible functions are described - judgment and military leadership.

In the Talmud, Tractate Sanhedrin, there is a dispute:

"It has been taught: Rabbi Eliezer says: the elders of that generation (in Samuel's time) made a proper request, saying 'Appoint a king over us to judge us,' but the ignorant ones (amei ha'aretz) among them spoiled it, saying '... And we will be like all the other nations and our king will judge us and go out before us'".

Rashi explains: "The elders requested a king to judge them and to force the transgressors to comply but the amei ha'aretz saw the king primarily as a military leader, saying - 'He will lead us out and fight our wars'." The Meiri adds: "... And cursed be the man who trusts in man and puts his faith in flesh and whose heart departs from the Lord" (in accord with Jeremiah 17:5). The legitimate role of the king is thus, according to Rashi and the Meiri, to punish those who transgress the laws of the Torah.

The legal system of the Torah requires an executive arm headed by the king. This same idea of the coercive power of the king is also found elsewhere. On the verse "Cursed be he who will not uphold the terms of this Teaching and observe them" (Deut.27:26), Nahmanides, quoting the Yerushalmi in Sotah, writes that:

"... For this reason King Josiah rent his garments (as a sign of mourning) and said: 'I must uphold it' ... and by upholding he meant that the monarchy or the presidency (nesiut) have it in their power to uphold the laws of the Torah against those who ignore them".

To sum up, Rashi sees the king as primarily a judge and one who enforces the laws of the Torah. There is objection to the role of the king as military leader, and this was the error of the amei ha'aretz.

This is definitely not the opinion of Maimonides, who says clearly:

"... And everything he [the king] does should be for the sake of Heaven and his intention should be to uphold the true religion and to fill the world with justice and to overcome (lit. - 'break the arm of') evildoers by force and to wage the wars of the Lord, for to begin with, a king is appointed only to do justice and wage wars, as it is said, ..... 'And our king will judge us and go out before us and fight our wars'" (Maimonides, Hilchot Melachim, chap. 4, halachah 10).

From here we may learn that Maimonides explained the passage from Sanhedrin which we cited above in a different fashion. The error of the amei ha'aretz was not one of content but in the form of their request.

"Since the appointment of the king is a commandment why was the Holy One Blessed Be He unwilling to do so when they requested a king of Samuel? Because their question was actually a complaint... they had utterly rejected the prophet Samuel" (Maimonides, ibid., chap. 1, halacha 2).

Following Maimonides we may conclude that judgment and military leadership were, indeed, the two functions of the king.

It remains for us to clarify the idea of the king's judgment. According to Rabbenu Nissim (the Ran) in his eleventh sermon, the king has special judiciary powers beyond the powers of the courts, for instance, in the case where the courts cannot punish due to lack of prior warning or some other formal requirement (see also Mishne Torah, Hilchot Rotzeach, chap.2, and Hilchot Melachim, chap. 3). Samuel was angry with them because they wanted to depend on the "vigilante" powers of the king rather than the laws of the Torah. In any case, the king as judge implies powers far beyond the authority to coerce lawbreakers.

As to military leadership, it is possible that a difference in religious outlook may be behind the dispute. To what extent should people depend on the Holy One Blessed Be He in military matters (Rashi) or are the people obligated to create their own army and proper weaponry (as Maimonides believes). In the epistle to the community of Marseilles, believed to have been written by Maimonides, which deals with reasons for the destruction of the Temple, he explains that they engaged in the predictions of star-gazers "rather than in studying the art of war and the conquest of lands" (see Iggerot Harambam - Letters of Maimonides, Shilat Edition[Jerusalem, 1988], vol. 2, p.478; see also introduction, p. 475).

In sum, we have found considerable lack of clarity in describing the functions of the king. It may very well be that the Torah was intentionally unclear on the subject and avoided detailed explanations so as not to lay down the law definitively. The role of the king was thus open to caccording to the decisions of the sages and the will of the people in each generation. (On the idea that the authority of the king is not always the same but is dependent on the will of the people, see Rabbi Shaul Yisraeli, Amud Hayemini, section 9).

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